Proposed Rule2022-18033
Health Care Professionals Practicing Via Telehealth
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 23, 2022
Issuing agencies
Veterans Affairs Department
Abstract
The Department of Veterans Affairs (VA) proposes to amend its medical regulations that govern the VA health care professionals who practice health care via telehealth. This proposed rule would implement the authorities of the VA MISSION Act of 2018 and the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021.
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<title>Federal Register, Volume 87 Issue 162 (Tuesday, August 23, 2022)</title>
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[Federal Register Volume 87, Number 162 (Tuesday, August 23, 2022)]
[Proposed Rules]
[Pages 51625-51631]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-18033]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 17
RIN 2900-AQ59
Health Care Professionals Practicing Via Telehealth
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its
medical regulations that govern the VA health care professionals who
practice health care via telehealth. This proposed rule would implement
the authorities of the VA MISSION Act of 2018 and the William M. (Mac)
Thornberry National Defense Authorization Act for Fiscal Year 2021.
DATES: Comments must be received on or before October 24, 2022.
ADDRESSES: Comments may be submitted through <a href="http://www.Regulations.gov">www.Regulations.gov</a>.
Comments should indicate that they are submitted in response to [``RIN
2900-AQ59--Health Care Professionals Practicing Via Telehealth.'']
Comments received will be available at <a href="http://regulations.gov">regulations.gov</a> for public
viewing, inspection or copies.
FOR FURTHER INFORMATION CONTACT: Kevin Galpin, MD, Executive Director
Telehealth Services, Veterans Health Administration Office of Connected
Care, 810 Vermont Avenue NW, Washington, DC 20420. (404) 771-8794.
(This is not a toll-free number.) <a href="/cdn-cgi/l/email-protection#f7bc92819e99d9b0969b879e99b78196d9909881"><span class="__cf_email__" data-cfemail="84cfe1f2edeaaac3e5e8f4edeac4f2e5aae3ebf2">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: On June 6, 2018, section 151 of Public Law
115-182, the John S. McCain III, Daniel K. Akaka, and Samuel R. Johnson
VA Maintaining Internal Systems and Strengthening Integrated Outside
Networks Act of 2018, or the VA MISSION Act of 2018, amended title 38
of the United States Code (U.S.C.) by adding a new section 1730C,
titled Licensure of health care professionals providing treatment via
telemedicine. On June 11, 2018, a final rule VA published in May 2018,
83 FR 21897, titled Authority of Health Care Providers to Practice
Telehealth (RIN 2900-AQ06), became effective; this regulation, which
established 38 CFR 17.417, grants VA health care providers the ability
to provide telehealth services within their scope of practice,
functional statement, and/or in accordance with privileges granted to
them by VA, in any location, within any State, irrespective of the
State or location within a State where the health care provider or the
beneficiary is physically located. Congress was aware VA was
promulgating this regulation and sought to codify VA's telehealth
authority through legislation. See H.R. Rep. No. 115-671, Part I, at
13-14. Congress passed the William M. (Mac) Thornberry National Defense
Authorization Act for Fiscal Year 2021 (2021 NDAA), which further
amended the definition of health care professional by including post
graduate health care employees and health professions trainees. See
Public Law 116-283, sec. 9101, January 2, 2021. Given the enactment of
these laws, we are updating our regulations to implement the new
statutory authority.
Section 1730C provides a definition of covered health care
professionals that differs from the definition of health care provider
under Sec. 17.417(a). We propose this regulation to make these
definitions consistent. Section 1730C(b)(1)(A) defines a covered health
care professional to include those VA employees appointed under 38
U.S.C. 7306, 7401, 7405, 7406, 7408 and title 5 of the U.S. Code.
Section 17.417(a) defined a health care provider as an individual who
is appointed to an occupation in the Veterans Health Administration
that is listed in or authorized under 38 U.S.C. 7401(1) or (3). To
maintain consistency between 38 U.S.C. 1730C and Sec. 17.417, VA is
proposing to amend the definition of health care provider to instead
refer to health care professionals. We would also renumber the
definition in Sec. 17.417 for clarity. VA proposes to add in Sec.
17.417(a)(2)(i) that a health care professional would include those
individuals who are appointed under 38 U.S.C. 7306, 7401, 7405, 7406,
7408, and title 5 of the U.S. Code.
VA is further proposing to amend the definition of health care
professional to be consistent with section 1730C(b)(1)(C) in proposed
Sec. 17.417(a)(2)(ii) to state that VA health care professionals would
be required to adhere to all standards for quality relating to the
provision of health care in accordance with applicable VA policies. We
note that while the statute uses the phrase provision of medicine, we
propose to use the phrase provision of health care because we
understand these terms to be equivalent and because the term health
care is used more frequently in VA's regulations than medicine.
Consistent with current Sec. 17.417, we would state in proposed
Sec. 17.417(a)(2)(iii) that VA-contracted health care professionals
remain excluded from the definition of health care professional. We
maintain this exclusion because contracted health care professionals
and community care professionals are not appointed under 38 U.S.C.
7306, 7401, 7405, 7406, 7408, or title 5, U.S. Code.
We would also state in proposed Sec. 17.417(a)(2)(iv)(A) that the
health care professional is qualified to provide health care based on
having an active, current, full, and unrestricted license,
registration, certification, or satisfy another State requirement in a
State to practice the health care profession of the health care
professional. This language is similar to the language in section
1730C(b)(1)(D)(i).
Proposed Sec. 17.417(a)(2)(iv)(B) would include those health care
professions listed under 38 U.S.C. 7402(b)(14) that, although they may
not be required to be licensed, registered or certified in their health
care profession, may be required to satisfy another State requirement
in a State that might limit them to practice telehealth. This
additional provision
[[Page 51626]]
would recognize such qualifications as prescribed by the Secretary for
those health care professions listed under 38 U.S.C. 7402(b)(14). This
amendment is consistent with section 1730C(b)(1)(D)(2). Additionally,
the proposed updates to the regulation are permitted pursuant to three
general statutory provisions that permit VA to authorize health care
practices by health care professionals at VA: 38 U.S.C. 303, 38 U.S.C.
7401, and 38 U.S.C. 7403(a)(1).
Proposed Sec. 17.417(a)(2)(iv)(C) would be consistent with section
1730C(b)(1)(B) and state that a health care professional is an employee
otherwise authorized by the Secretary to provide health care services.
The statutory authorities under 38 U.S.C. 303, 7401, and 7403(a)(1)
also permit the VA Secretary to authorize VA health care professionals,
including health professions trainees, other health care professionals,
and those listed in the proposed regulation, to engage in telehealth.
In addition, the William M. (Mac) Thornberry National Defense
Authorization Act for Fiscal Year 2021 amended section 1730C to
expressly identify such persons within its statutory authority. We note
that section 1730C uses the term postgraduate health care employee.
However, we would instead use the term health care professional to
maintain consistency in terminology with other regulations. See Sec.
17.419. We would, therefore, state in proposed Sec.
17.417(a)(2)(iv)(D) that a health care professional would also include
those individuals who are under the clinical supervision of a health
care professional that meets the requirements of paragraphs
(a)(2)(iv)(A) through (C) of this section and is either a health
professions trainee or a health care employee.
Health professions trainees work in an apprenticeship model with
VA-employed health care professionals as part of their training
programs and are not required to have a license, registration,
certification, or other State requirement. Health professions trainees
are appointed under 38 U.S.C. 7405 or 7406. Section 1730C(b)(3)
authorizes trainees to provide health care via telehealth and as such,
we would state in Sec. 17.417(a)(2)(iv)(D)(1) that such trainee must
be a health professions trainee appointed under 38 U.S.C 7405 or 38
U.S.C 7406 participating in clinical or research training under
supervision to satisfy program or degree requirements.
Similarly, section 1730C(b)(2) includes health care employees who
are appointed under title 5, U.S. Code, 38 U.S.C. 7401(1), (3), or 38
U.S.C. 7405 for any category of personnel described in 38 U.S.C.
7401(1) or (3). Health care employees must obtain full and unrestricted
licensure, registration, or certification or meet the qualification
standards as defined by the Secretary within the specified time frame.
We would state these requirements in Sec. 17.417(a)(2)(iv)(D)(2).
We propose to amend Sec. 17.417(b)(1) for clarity. We would
clarify the first part of the first sentence of Sec. 17.417(b)(1),
which would now be numbered as Sec. 17.417(b)(1), by stating that when
a State law, license, registration, certification, or other State
requirement is inconsistent with this section, the health care
professional is required to abide by their Federal duties and
requirements. We would make this clarification because without a broad,
clear statement about which standards a health care professional should
follow when State requirements are inconsistent with VA requirements
for a health care professional's practice via telehealth, such State
requirements would create ambiguity for VA health care professionals,
thereby delaying telehealth service delivery, and preventing VA from
training and overseeing VA health care professionals based on a single,
consistent standard. This change would also be consistent with the
statute governing licensure requirements of VA health care
professionals' practice via telehealth. See 38 U.S.C. 1730C(d)(1). One
example is if VA requires verbal consent for telehealth but a State
required written consent, the VA health care professional would only be
required to obtain verbal consent. Alternatively, if State law did not
require obtaining consent at all, but VA policy required verbal
consent, the VA health care professional would still be required to
obtain verbal consent. Another example is when a State has a specific
training requirement for a health care professional for telehealth. We
note that VA has specific training requirements for health care
professionals who practice via telehealth that do not include each
State's specific training or telehealth requirements. The VA health
care professional must comply with VA's training requirement in order
to practice via VA's telehealth program. In all instances, VA policy
would establish requirements for quality and processes that would be
met in all cases, but VA health care professionals would not be
required to take additional steps or actions beyond those established
in VA policy to comply with State law requirements.
We propose to add a new Sec. 17.417(b)(2), which would restate the
second part of the first sentence of current Sec. 17.417(b)(1).
However, we would clearly state that in order for the health care
professional to be covered under this section, such professional must
be practicing within the scope of their Federal duties. The provision
of telehealth outside of the scope of the health care professional's
Federal duties would not be covered by this rulemaking. We would,
therefore, state in proposed Sec. 17.417(b)(2) that VA health care
professionals may practice their health care profession within the
scope of their Federal duties in any State irrespective of the State or
location within a State where the health care professional or the
beneficiary is physically located, if the health care professional is
using telehealth to provide health care to a beneficiary.
We propose to add a new Sec. 17.417(b)(3) to restate the second
sentence of current Sec. 17.417(b)(1), but would add that the practice
is limited by the Controlled Substances Act and its implementing
regulations. Proposed Sec. 17.417(b)(3) would state that health care
professionals' practice is subject to the limitations imposed by the
Controlled Substances Act, 21 U.S.C. 801, et seq. and implementing
regulations at 21 CFR part 1300 on the authority to prescribe or
administer controlled substances, as well as any other limitations on
the provision of VA care set forth in applicable Federal law,
regulation, and policy.
Section 1730C provides VA's authority to establish the scope of
practice for health care professionals who practice telehealth. Section
1730C(d)(1) provides that federal law shall supersede any provisions of
the law of any State to the extent that such provisions of State law
are inconsistent with it. States are, therefore, prevented from
interfering with the exercise of VA duties by imposing requirements
that are inconsistent with federal duties and requirements of health
care professionals who practice within the scope of their VA
employment. While there is a general requirement that a Federal
employee be licensed, registered, or certified by a State, a line must
be drawn between reasonable and established rules of practice, which
are understood to be incorporated by reference by Federal statutes
requiring Federal employees to carry licenses, and rules that would
penalize or otherwise interfere with the performance of authorized
federal duties. See State Bar Disciplinary Rules as Applied to Federal
Government Attorneys, 9 Op. O.L.C. 71, 72-73 (1985) (quotations
omitted). A State's licensure laws or rules that would prevent a VA
health care
[[Page 51627]]
professional from engaging in telehealth would fall into the latter
category and therefore could be preempted. Given our statutory
authority under section 1730C, which supersedes any provisions of State
law to the extent that such provision of State law are inconsistent
with a VA health care professional's practice via telehealth, we
propose to remove the last part of the last sentence in Sec.
17.417(b)(1).
We propose to add a new Sec. 17.417(b)(4), which would restate
Sec. 17.417(b)(2) with changes described herein. We are clarifying
current Sec. 17.417(b)(4)(iii) and (iv). The current language is not
clear as to where the health care professional or the beneficiary is
located. Proposed paragraph Sec. 17.417(b)(4) (iii) would now state
the health care professional is delivering services while the
professional is located in a State other than the health care
professional's State of licensure, registration, or certification.
Proposed Sec. 17.417(b)(4)(iv) would now state the health care
professional is delivering services while the professional is either on
or outside VA property.
We propose to clarify current Sec. 17.417(b)(2)(v) to be inclusive
of all beneficiaries. We note that all beneficiaries do not identify as
she or he. We would, therefore, amend Sec. 17.417(b)(2)(v) to state
the beneficiary is receiving services while the beneficiary is located
either on or outside VA property.
Current Sec. 17.417(b)(2)(vi) states that situations where a
health care provider's VA practice of telehealth may be inconsistent
with a State law, or State license, registration, or certification, or
other requirement include when the beneficiary has or has not
previously been assessed, in person, by the health care provider. We
propose to eliminate the term ``has'' as it refers to having been
previously assessed in person. Some States require that a patient be
first assessed in person prior to being provided health care via
telehealth. Therefore, this part of the provision would not be
inconsistent with some State requirements. Proposed Sec.
17.417(b)(4)(vi) would only provide for situations that would be
inconsistent with State law or State license, registration,
certification, or other requirements related to telehealth, which
includes when the beneficiary has not been previously assessed, in
person, by the health care professional. The proposed change would also
be consistent with section 1730C(d)(1).
We propose to add a new Sec. 17.417(b)(4)(vii), which would
provide another example of a situation where a State license,
registration, certification, or other State requirement may be
inconsistent or conflict with VA policy. One example would be where a
beneficiary has not provided VA with a signed written consent in order
to receive health care via telehealth. This example is added because
some States do not allow a health care professional to provide
telehealth services to a beneficiary unless the beneficiary has signed
a written consent form. VA regulations only require verbal consent for
the provision of telehealth. Requiring signature consent would
disadvantage beneficiaries who do not possess the technology or digital
skills to complete a remote signature consent prior to their telehealth
visits. This provision would allow for the provision of health care
services via telehealth. VA is already bound to informed consent
requirements under 38 U.S.C. 7331 as implemented by 38 CFR 17.32.
Section 17.32 of 38 CFR mandates that all patient care furnished under
title 38, including health care services via telehealth, shall be
carried out with the full and informed consent of the patient or, in
appropriate cases, a representative thereof. That consent is not
required to be in writing except in the narrow circumstances set forth
in 38 CFR 17.32(d)(1). Thus, because 38 U.S.C. 7331 requires, in
relevant part, that the Secretary of Veterans Affairs, prescribe
regulations to ensure, to the maximum extent practicable, that all VA
patient care be carried out only with the full and informed consent of
the patient, or in appropriate cases, a representative thereof, and VA
has implemented 38 CFR 17.32 establishing the standards for obtaining
informed consent from a patient for a medical treatment or a diagnostic
or therapeutic procedure, we assert that 38 CFR 17.32, combined with 38
U.S.C. 7331 categorically excludes any State regulation of how VA
health care professionals go about obtaining informed consent.
We would not restate current Sec. 17.417(b)(2)(vii) because this
information is already captured in proposed Sec. 17.417(b)(1).
Finally, we propose to revise the list of authorities cited for
Sec. 17.417 to include section 1730C. We note that all prior
authorities cited by this regulation would continue to apply and could
protect VA health care professionals practicing telehealth in
situations not covered by section 1730C. For example, section 1730C
only protects VA health care professionals providing treatment to
individuals under chapter 17 of title 38, U.S.C. VA provides treatment
to servicemembers and other beneficiaries of the Department of Defense
who are not eligible for VA health care under chapter 17 pursuant to
sharing agreements entered into under section 8111 in chapter 81 of
title 38, U.S.C. VA's general authority on which its original
regulations were premised, 38 U.S.C. 303, 7401, and 7403(a)(1), would
continue to cover VA health care professionals furnishing health care
not otherwise covered by section 1730C. We propose to also include 38
U.S.C. 7306, 7405, 7406, and 7408. These new authorities cover
individuals who would now be included as health care professionals
under the proposed definition in Sec. 17.417(a)(2). In addition, we
would also include 38 U.S.C. 7331, which would cover the informed
consent as previously stated in this rulemaking. The statutory
authority for Sec. 17.417 would now be 38 U.S.C. 1701 (note), 1709A,
1712A (note), 1722B, 1730C, 7301, 7306, 7330A, 7331, 7401-7403, 7405,
7406, 7408.
Executive Order 13132, Federalism
Executive Order 13132 provides the requirements for preemption of
State law when it is implicated in rulemaking. Where a Federal statute
does not expressly preempt State law, agencies shall construe any
authorization in the statute for the issuance of regulations as
authorizing preemption of State law by rulemaking only when the
exercise of State authority directly conflicts with the exercise of
Federal authority or there is clear evidence to conclude that the
Congress intended the agency to have the authority to preempt State
law. Through this rulemaking process, we can preempt any State law or
action that conflicts with the exercise of Federal duties in providing
health care via telehealth to VA beneficiaries.
In addition, any regulatory preemption of State law must be
restricted to the minimum level necessary to achieve the objectives of
the statute pursuant to the regulations that are promulgated. In this
rulemaking, State licensure, registration, and certification laws,
rules, regulations, or other State requirements are preempted only to
the extent such State laws are inconsistent with the VA health care
professionals' practicing health care via telehealth while acting
within the scope of their VA employment. VA also has statutory
authority under 38 U.S.C. 1730C to preempt State law. Therefore, we
believe that the rulemaking is restricted to the minimum level
necessary to achieve the objectives of the Federal statute.
The Executive Order also requires an agency that is publishing a
regulation
[[Page 51628]]
that preempts State law to follow certain procedures. These procedures
include: the agency consult with, to the extent practicable, the
appropriate State and local officials in an effort to avoid conflicts
between State law and federally protected interests; and the agency
provide all affected State and local officials notice and an
opportunity for appropriate participation in the proceedings.
Because this proposed rule would preempt certain State laws, VA
consulted with State officials in compliance with sections 4(d) and
(e), as well as section 6(c) of Executive Order 13132. On August 21,
2019, VA sent a letter to the following: National Association of Boards
of Pharmacy (NABP), Association of State and Provincial Psychology
Boards, National Governors Association, American Academy of Physicians
Assistants (AAPA), National Council of State Boards of Nursing (NCSBN),
National Association of State Directors of Veterans Affairs,
Association of Social Work Boards (ASWB), and the Federation of State
Medical Boards to state VA's intent to amend the current regulations
that allow VA health care professionals to practice telehealth.
We received 11 comments from the State officials. We received three
comments fully supporting the rule. The AAPA supported the objective of
the proposed amendment to ensure qualified health care professionals,
including trainees, employed by VA, provide veterans with the same high
level of care and access to care no matter where a beneficiary or
health care provider is located at the time health care is provided.
AAPA also appreciated VA proposing to modify the telehealth regulation
to add clarity so that, in situations where VA rules governing the
practice of telehealth are in conflict with State laws or State
license, registration, or certification requirements, the health care
professional practicing telehealth at VA is required to adhere to VA
policy or standards and is not at risk of losing their State license.
AAPA stated that it supports the efforts VA is undertaking to improve
the delivery of care for our nation's veterans and stands ready to
assist VA in meeting its challenge to provide veterans with timely
access to high quality medical care.
NABP supported expanding health care delivery by means of
telehealth, specifically telepharmacy, and recognizes that telehealth
can provide patients with quality health care that they may not
otherwise receive or have difficulty accessing. The Model State
Pharmacy Act and Model Rules of the National Association of Boards of
Pharmacy (Model Act) provides model regulatory language for NABP's
member boards. Pursuant to the recommendation of NABP's Task Force on
the Regulation of Telepharmacy Practice, the Model Act was amended to
include the practice of telepharmacy. The State boards of pharmacy also
recognize the important benefits of telehealth services to the public.
According to information provided to NABP from the State boards of
pharmacy, approximately 40 States allow the practice of telepharmacy in
some manner. NABP stated that it would communicate VA's intention to
expand health care to veterans through telemedicine, encourage the
State boards of pharmacy to review existing pharmacy laws and rules for
hinderances to implementation of telemedicine services to veterans, and
encourage the boards to make amendments to State laws and rules to
facilitate telehealth access to veterans. NABP stated that the practice
of telehealth, specifically telemedicine, between a health care
provider and a veteran receiving care through the Veterans Health
Administration is not typically subject to State regulatory oversight.
One scenario that NABP wished to highlight is the legitimacy of
controlled substance (CS) prescriptions that are issued by means of
telecommunications that do not involve an initial face-to-face
encounter for an exam/assessment, but are otherwise valid prescriptions
under the Controlled Substances Act. If a CS prescription is issued via
telemedicine without a face-to-face encounter and a veteran seeks the
services of a community pharmacy to meet his or her immediate need, the
community pharmacists may not be authorized to dispense the CS
according to certain State pharmacy laws. Therefore, NABP stated it
would communicate to the State boards of pharmacy about VA's telehealth
initiative to help bridge the gap between the need for health care and
veterans' access to it.
We received a comment from the Association of State and Provincial
Psychology Boards (ASPPB). Based on a review of the information shared
within the recent VA correspondences to ASPPB and ASPPB's knowledge of
the strong training programs that occur throughout the nation under the
authority of the VA, the ASPPB stated that they have no comments to
refute the proposed upcoming changes to VA regulatory language on VA's
proposed plans to amend its regulations to remove barriers and
accelerate access to telehealth for veterans.
The other comments received were mostly in favor of the rule,
however, the commenters expressed concern surrounding the addition of
trainees as health care professionals who would be allowed to practice
telehealth within the scope of their VA duties. The comments are as
follows:
The ASWB requested a clarification of the definition of trainee.
The ASWB asked if the term trainee included social work students in
field placement only or if trainees included master of social work
graduates under clinical supervision working towards licensure. The
ASWB added that in both of these scenarios, the trainees would be bound
to adhere to VA policies and procedures in addition to school policies
as students and State policies while working towards their State
licensure. The ASWB also stated that it requires a licensed social
worker to obtain a State license in the State where the client is
located as well as the State where the health care provider is located.
The ASWB understands that VA has secure, advanced, and supervised
telehealth infrastructure in place that protects the health care
professional and client and is able to provide support services while
the health care professional is practicing in a VA medical facility.
However, the ASWB believes that this may not be the case in
circumstances where the health care professional is practicing
telehealth outside a VA medical facility. Social work regulators
believe that by requiring a social worker to obtain a license in each
jurisdiction where practice occurs, the client is better protected. The
ASWB emphasized that jurisdictional boards have the power to
investigate any complaints made against licensed social workers
employed in VA and that VA's full cooperation with the investigation
and enforcement related to licenses is needed for true protection of
the public.
In response to ASWB's concerns, we note that VA has the statutory
authority under 38 U.S.C. 1730C(d)(1) to preempt any provisions of the
law of any State to the extent that such provisions of State law are
inconsistent with this section. In addition, VA has already established
in 38 CFR 17.417 that this section preempts conflicting State laws
relating to the practice of health care providers when such health care
providers are practicing telehealth within the scope of their VA
employment. As such, VA has the authority to allow social workers to
practice health care via telehealth. Also, the qualifications of a VA
social worker are stated in 38 U.S.C. 7402(b)(9), which include that
the social worker must hold a master's degree in social work from a
college or university approved by the
[[Page 51629]]
Secretary and be licensed or certified to independently practice social
work in a State. With regards to social worker trainees, VA never
intended that these trainees work without the supervision of an
otherwise licensed social worker. The trainees will be supervised while
practicing health care via telehealth. We appreciate the commenter's
recognition of the quality of the VA telehealth program and that VA
maintains a secure, advanced, and supervised telehealth infrastructure
irrespective of the veterans or health care professional's location
when delivering VA.
The NCSBN expressed concern regarding the expansion of telehealth
privileges to nurse assistants and other assistive personnel as
outlined in 38 U.S.C. 7401. Nurse assistants and other assistive
personnel do not have a national governing body, leaving the regulation
of these occupations to the individual States. The majority of States
do not license the occupation and have widely inconsistent standards
for certification. There is no national database for agencies to report
disciplinary actions for many assistive personnel roles, creating a
public protection issue for these for patients receiving care across
State lines. NCBSN provided the following example: if VA fired a nurse
assistant following an interstate telehealth interaction, there is no
infrastructure by which those States can communicate nationally to
ensure that appropriate disciplinary action is taken against the
provider's licensure/certification across the country. Therefore, it
would be possible that the provider could continue to practice in a
different system and State without suffering any consequences.
Additionally, NCSBN did not support allowing unlicensed or pre-
licensure nurses to provide telehealth services as would be allowable
for temporary full-time appointments under 38 U.S.C 7405. Boards of
Nursing (BONs) do not have authority to discipline pre-licensure
nurses, as they do not have an active license. Furthermore, BONs are
unable to determine a nurse's competency without the completion and
passage of the National Council Licensure Examination. Without a
license, a nurse cannot be held accountable for a mistake by a BON,
because there is no means to report them to a BON if an adverse event
takes place. This also means there is no recourse for the patient if
they are harmed. By allowing pre-licensure nurses to deliver telehealth
services, VA would be exposing patients and nurses in the process of
seeking licensure to great risk. Further, NCSBN stated that section
1730C(b)(1) defines a covered health professional as not only an
employee of the Department appointed under the authority under section
7306, 7405, 7406, or 7408 of this title or title 5, but also a health
care professional who has ``an active, current, full and unrestricted
license, registration and certification in a State to practice the
health care profession of the health care professional.'' NCSBN stated
that while 38 U.S.C. 7405 includes unlicensed or pre-licensure
individuals, it believed section 1730C explicitly states that in order
to practice telemedicine, a provider must have an active license. NCSBN
stated its firm belief that nurses should be fully licensed before
practicing to ensure that they provide safe, competent care and retain
the public protection mechanisms that allows VA to report disciplinary
actions to the appropriate State licensing boards.
VA recognizes that 38 U.S.C. 1730C(b)(1)(D)(i) states that a
covered health care professional must have an active, current, full,
and unrestricted license, registration, or certification in a State to
practice the health care profession of the health care professional.
However, 38 U.S.C. 1730C was updated by the 2021 NDAA and section
1730C(b)(2) and (b)(3) now includes those individuals who are trainees
and post graduate employees appointed under 38 U.S.C. 7405 and 7406. In
addition, VA requires supervision of trainees pre-licensed nurses by a
qualified health care professional who meet the requirement of stated
in section 1730C(b)(1). VA also continuously monitors all health care
professionals, including trainees, and has procedures in place to
report any adverse action to the appropriate State licensing board.
VA received several comments regarding trainees. The commenters
from the Virginia Board of Medicine, Federation of State Medical
Boards, Kansas State Board of Healing Arts, and the Wisconsin Medical
Examining Board stated that to ensure consistency in the quality of
care between veterans and the general public, trainees should not be
allowed to practice telehealth without supervision and that only such
trainees that possessed full and unrestricted licenses should practice
health care via telehealth. The commenters added that the care that is
provided by VA must be of the highest quality, meaning from physicians
who have been trained to practice independently, have proven their
knowledge, clinical acumen, and skills, or, if not, are under the
supervision of another physician who has. A commenter added that the
proposed rule to amend the definition of health care provider to
include trainees and authorize trainees to provide health care or
telemedicine would mean that a trainee could practice independently via
telemedicine or independently provide other health care without
supervision, in violation of their license and with the risks of
providing less than optimal care and potentially putting patients'
lives at risk. They further stated that the proposed rule fails to
recognize not only that States differ in qualifications to get a
training license but also that these trainees differ in their knowledge
and capabilities. In addition, a commenter argued that assigning a
person with a trainee license to provide telemedicine or other health
care is contrary to the VA mission and core value of excellence.
Finally, they concluded that expanding the definition of health care
provider to include trainees and asserting that where State law is
inconsistent with VA practice the VA standards will prevail or
supersede State law will promote lower standards of care for veterans.
In response to the comments about trainees and postgraduate
employees practicing independently through telehealth, this rulemaking
would not allow these individuals to practice without clinical
supervision. In fact, this rulemaking explicitly requires that trainees
and postgraduate employees only participate in telehealth under
clinical supervision by an employee who is licensed, registered, or
certified by a State, or under clinical supervision by an employee who
otherwise meets qualifications as defined by the Secretary.
To be covered by the authorization to practice telehealth in 38
U.S.C. 1730C(b), a VA health care professional must have an active,
current, full, and unrestricted license, registration, or certification
in a State to practice the health care profession of the health care
professional or, with respect to a health care profession listed under
section 7402(b) of Title 38, have qualifications for such profession as
set forth by the secretary. Trainees and postgraduate employees are
expressly authorized to participate in telehealth in the 2021 NDAA
updates to 38 U.S.C. 1730C, but only under the supervision of one of
these health care professionals.
Additionally, the VA Secretary has statutory authority independent
of 38 U.S.C. 1730C to permit the authorization of health care practices
by health care professionals at VA pursuant to 38 U.S.C. 303, 501, and
7403.
[[Page 51630]]
Thus the VA Secretary has the authority to authorize by regulation
the practice of telehealth by the VA health care professionals listed
in 38 U.S.C. 7401 and by VA health care professional trainees appointed
under 38 U.S.C. 7405 or 7406.
We also received a comment from the National Board for
Certification in Occupational Therapy and another from the Federation
of State Boards of Physical Therapy, however, these comments were
received outside the 30-day comment period. These commenters may submit
a comment during the rulemaking's notice and comment period. We
received a response from the National Association of State Directors of
Veterans Affairs, however, we consider these comments outside the scope
of this rulemaking and do not make any changes based on these comments.
Paperwork Reduction Act
This proposed rule contains no provisions constituting a collection
of information under the Paperwork Reduction Act of 1995 (44 U.S.C.
3501-3521).
Regulatory Flexibility Act
The Secretary hereby certifies that this proposed rule will not
have a significant economic impact on a substantial number of small
entities as they are defined in the Regulatory Flexibility Act, 5
U.S.C. 601-612. The provisions associated with this rulemaking are not
processed by any other entities outside of VA. Therefore, pursuant to 5
U.S.C. 605(b), the initial and final regulatory flexibility analysis
requirements of 5 U.S.C. 603 and 604 do not apply.
Executive Orders 12866, 13563
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, when
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, and other advantages; distributive impacts;
and equity). Executive Order 13563 (Improving Regulation and Regulatory
Review) emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
The Office of Information and Regulatory Affairs has determined that
this rule is not a significant regulatory action under Executive Order
12866. The Regulatory Impact Analysis associated with this rulemaking
can be found as a supporting document at www.<a href="http://regulations.gov">regulations.gov</a>.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532, requires
that agencies prepare an assessment of anticipated costs and benefits
before issuing any rule that may result in the expenditure by State,
local, and tribal governments, in the aggregate, or by the private
sector, of $100 million or more (adjusted annually for inflation) in
any one year. This proposed rule will have no such effect on State,
local, and tribal governments, or on the private sector.
Assistance Listing
The Assistance Listing numbers and titles for the programs affected
by this document are: 64.007, Blind Rehabilitation Centers; 64.008,
Veterans Domiciliary Care; 64.009, Veterans Medical Care Benefits;
64.010, Veterans Nursing Home Care; 64.011, Veterans Dental Care;
64.012, Veterans Prescription Service; 64.013, Veterans Prosthetic
Appliances; 64.018, Sharing Specialized Medical Resources; 64.019,
Veterans Rehabilitation Alcohol and Drug Dependence; 64.022, Veterans
Home Based Primary Care; 64.039, CHAMPVA; 64.040, VHA Inpatient
Medicine; 64.041, VHA Outpatient Specialty Care; 64.042, VHA Inpatient
Surgery; 64.043, VHA Mental Health Residential; 64.044, VHA Home Care;
64.045, VHA Outpatient Ancillary Services; 64.046, VHA Inpatient
Psychiatry; 64.047, VHA Primary Care; 64.048, VHA Mental Health
Clinics; 64.049, VHA Community Living Center; and 64.050, VHA
Diagnostic Care.
List of Subjects in 38 CFR Part 17
Administrative practice and procedure, Alcohol abuse, Alcoholism,
Claims, Day care, Dental health, Drug abuse, Foreign relations,
Government contracts, Grant programs-health, Grant programs-veterans,
Health care, Health facilities, Health professions, Health records,
Homeless, Medical and dental schools, Medical devices, Medical
research, Mental health programs, Nursing homes, Reporting and
recordkeeping requirements, Scholarships and fellowships, Travel and
transportation expenses, Veterans.
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, approved this
document on July 21, 2022, and authorized the undersigned to sign and
submit the document to the Office of the Federal Register for
publication electronically as an official document of the Department of
Veterans Affairs.
Consuela Benjamin,
Regulations Development Coordinator, Office of Regulation Policy &
Management, Office of General Counsel, Department of Veterans Affairs.
For the reasons set forth in the preamble, the Department of
Veterans Affairs proposes to amend 38 CFR part 17 as set forth below:
PART 17--MEDICAL
0
1. The authority citation for part 17 is amended by revising the
authority for Sec. 17.417 to read as follows:
Authority: 38 U.S.C. 501, and as noted in specific sections.
* * * * *
Section 17.417 also issued under 38 U.S.C. 1701 (note), 1709A,
1712A (note), 1722B, 1730C, 7301, 7306, 7330A, 7331, 7401-7403,
7405, 7406, 7408.
* * * * *
0
2. Amend Sec. 17.417 by:
0
a. Revising the section heading and paragraphs (a)(2) and (b); and
0
b. In paragraph (c), removing the term ``health care providers''' and
adding in its place the term ``health care professionals'' wherever it
appears.
The revisions read as follows:
Sec. 17.417 Health care professionals practicing via telehealth.
(a) * * *
(2) Health care professional. The term health care professional is
an individual who:
(i) Is appointed to an occupation in the Veterans Health
Administration that is listed in or authorized under 38 U.S.C. 7306,
7401, 7405, 7406, or 7408, or title 5 of the U.S. Code;
(ii) Is required to adhere to all standards for quality relating to
the provision of health care in accordance with applicable VA policies;
(iii) Is not a VA-contracted health care professional; and
(iv) Is qualified to provide health care as follows:
(A) Has an active, current, full, and unrestricted license,
registration, certification, or satisfies another State requirement in
a State to practice the health care profession of the health care
professional;
(B) Has other qualifications as prescribed by the Secretary for one
of the health care professions listed under 38 U.S.C. 7402(b);
(C) Is an employee otherwise authorized by the Secretary to provide
health care services; or
(D) Is under the clinical supervision of a health care professional
that meets
[[Page 51631]]
the requirements of paragraph (a)(2)(iv)(A)-(C) of this section and is
either:
(1) A health professions trainee appointed under 38 U.S.C 7405 or
38 U.S.C 7406 participating in clinical or research training under
supervision to satisfy program or degree requirements; or
(2) A health care employee, appointed under title 5, 38 U.S.C.
7401(1),(3), or 38 U.S.C 7405 for any category of personnel described
in 38 U.S.C. 7401(1),(3) who must obtain full and unrestricted
licensure, registration, or certification or meet the qualification
standards as defined by the Secretary within the specified time frame.
* * * * *
(b) Health care professional's practice via telehealth. (1) When a
State law, license, registration, certification, or other State
requirement is inconsistent with this section, the health care
professional is required to abide by their federal duties and
requirements. No State shall deny or revoke the license, registration,
or certification of a covered health care professional who otherwise
meets the qualifications of the State for holding the license,
registration, or certification on the basis that the covered health
care professional has engaged or intends to engage in activity covered
under this section.
(2) VA health care professionals may practice their health care
profession within the scope of their federal duties in any State
irrespective of the State or location within a State where the health
care professional or the beneficiary is physically located, if the
health care professional is using telehealth to provide health care to
a beneficiary.
(3) Health care professionals' practice is subject to the
limitations imposed by the Controlled Substances Act, 21 U.S.C. 801, et
seq. and implementing regulations at 21 CFR 1300 et seq., on the
authority to prescribe or administer controlled substances, as well as
any other limitations on the provision of VA care set forth in
applicable Federal law, regulation, and policy.
(4) Examples of where a health care professional's VA practice of
telehealth may be inconsistent or conflict with a State law or State
license, registration, or certification requirements related to
telehealth include when:
(i) The beneficiary and the health care professional are physically
located in different States during the episode of care;
(ii) The beneficiary is receiving services in a State other than
the health care professional's State of licensure, registration, or
certification;
(iii) The health care professional is delivering services while the
professional is located in a State other than the health care
professional's State of licensure, registration, or certification;
(iv) The health care professional is delivering services while the
professional is either on or outside VA property;
(v) The beneficiary is receiving services while the beneficiary is
located either on or outside VA property;
(vi) The beneficiary has not been previously assessed, in person,
by the health care professional; or
(vii) The beneficiary has verbally agreed to participate in
telehealth but has not provided VA with a signed written consent.
* * * * *
[FR Doc. 2022-18033 Filed 8-22-22; 8:45 am]
BILLING CODE 8320-01-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.